[Congressional Record Volume 145, Number 85 (Wednesday, June 16, 1999)]
[Extensions of Remarks]
[Page E1285]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


               INTRODUCTION OF THE FEDERALISM ACT OF 1999

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                         HON. DAVID M. McINTOSH

                               of indiana

                    in the house of representatives

                        Wednesday, June 16, 1999

  Mr. McINTOSH. Mr. Speaker, today, I rise to introduce the 
``Federalism Act of 1999,'' a bipartisan bill to promote and preserve 
the integrity and effectiveness of our federalist system of government, 
and to recognize the partnership between the Federal Government and 
State and local governments in the implementation of certain Federal 
programs. As James Madison wrote in Federalist No. 45, ``The powers 
delegated . . . to the Federal government are defined and limited. 
Those which are to remain in the State governments are numerous and 
indefinite.''
  In May 1998, President Clinton issued Executive Order (E.O.) 13083, 
which revoked President Reagan's 1987 Federalism E.O. 12612 and 
President Clinton's own 1993 Federalism E.O. 12875. The Reagan Order 
provided many protections for State and local governments and reflected 
great deference to State and local governments. It also set in place 
operating principles and a required discipline for the Executive Branch 
agencies to follow for all decisionmaking affecting State and local 
governments. The Reagan Order was premised on a recognition of the 
competence of State and local governments and their readiness to assume 
more responsibility. In August 1998, after a hearing before the 
Subcommittee on National Economic Growth, Natural Resources and 
Regulatory Affairs, which I chair, and the outcry of the seven major 
national organizations that represent State and local elected 
officials, President Clinton indefinitely suspended his E.O. 13083 and 
agreed to work with these national organizations on any substitute 
Order.
  The ``Federalism Act of 1999'' is being introduced in response to a 
request for permanent legislation by the leadership of these seven 
major national organizations. It is a product of several months' work 
by a bipartisan group of Members together with those national 
organizations and their leadership to ensure that the legislation 
includes provisions most needed and desired by them to promote and 
preserve Federalism. The absence of clear congressional intent 
regarding preemption of State and local authority has resulted in too 
much discretion for Federal agencies and uncertainty for State and 
local governments, leaving the presence of scope of preemption to be 
determined by litigation in the Federal judiciary.
  The ``Federalism Act of 1999'' has a companion bipartisan bill on the 
Senate side, S. 1214, the ``Federalism Accountability Act of 1999,'' 
which was introduced last week. Both bills share nearly identical 
purposes: (1) to promote and preserve the integrity and effectiveness 
of our federalist system of government, (2) to set forth principles 
governing the interpretation of congressional intent regarding 
preemption of State and local government authority by Federal laws and 
rules, (3) to recognize the partnership between the Federal Government 
and State and local governments in the implementation of certain 
Federal programs, and (4) to establish a reporting requirement to 
monitor the incidence of Federal statutory, regulatory, and judicial 
preemption.
  The ``Federalism Act of 1999'' establishes new discipline on both the 
Legislative Branch and the Executive Branch before either imposes 
requirements that preempt State and local authority or have other 
impacts on State and local governments. The ``Federalism Act of 1999'' 
requires that the report accompanying any bill identify each section of 
the bill that constitutes an express preemption of State or local 
government authority and the reasons for each such preemption, and 
include a Federalism Impact Assessment (FIA) including the costs on 
State and local governments. Likewise, the bill requires Executive 
Branch agencies to include a FIA in each proposed, interim final, and 
final rule publication. The FIA must identify any provision that is a 
preemption of State or local government authority and the express 
statutory provision authorizing such preemption, the regulatory 
alternatives considered, and other impacts and the costs on State and 
local governments.
  The bill establishes new rules of construction relating to 
preemption. These include that no new Federal statute or new Federal 
rule shall preempt any State or local government law or regulation 
unless the statute expressly states that such preemption is intended. 
Any ambiguity shall be construed in favor of preserving the authority 
of State and local governments.
  Besides instituting this new discipline for the Legislative and 
Executive Branches and providing new rules of construction for the 
Judiciary, the bill includes other provisions to recognize the special 
competence of and partnership with State and local governments. The 
bill provides deference to State management practices for financial 
management, property, and procurement involving certain Federal grant 
funds. The bill also requires Executive Branch agencies, for State-
administered Federal grant programs, to cooperatively determine program 
performance measures under the Government Performance and Results Act 
with State and local elected officials and the seven major national 
organizations that represent them.
  The McIntosh-Moran-Portman-McCarthy-Castle-Condit-Davis bill is a 
product of work with the seven major State and local interest groups: 
the National Governors' Association, National Conference of State 
Legislatures, Council of State Governments, U.S. Conference of Mayors, 
National League of Cities, National Association of Counties, and the 
International City/County Management Association.

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